Local government advocates concerned about Iowa Supreme Court ruling on open meetings

Advocacy groups representing local government bodies are concerned that the Iowa Supreme Court's new decision on open meetings will make it difficult for elected officials to obtain information from staff and conduct business. On Friday, a divided court ruled that Warren County supervisors were not in compliance with Iowa law when they used a staffer as a go-between while working out a county downsizing plan behind closed doors. Writing for the majority of four, Justice David Wiggins argued that allowing such a scheme "would result in absurd consequences undermining the clear purpose of the open meetings law." He further explained that "open meetings requirements apply to all in-person gatherings at which there is deliberation upon any matter within the scope of the policy-making duties of a governmental body by a majority of its members, including in-person gatherings attended by members of a governmental body through agents or proxies."

Three justices dissented, seeing it as a job for state lawmakers "to redefine the requirements of the open meetings law" and warning that the court's new standard "will have a chilling effect on well-intentioned public officials" who rely on information from staff when considering policy options.

The full text of the majority decision and dissents in Hutchison v Shull can be found here. Bleeding Heartland posted background on the case and highlights from the opinions here.

Justice Thomas Waterman's dissent lamented the absence of "friend of the court" briefs from the Iowa State Association of Counties, the Iowa League of Cities, and the Iowa Association of School Boards. I asked representatives of each organization to explain how their training for elected officials addresses Warren County-like methods to avoid discussing public policy in open meetings. I also sought comment on the Hutchison v Shull majority ruling and on the concerns Waterman raised.

Here is a key passage from Waterman's dissent on behalf of three justices:

Unfortunately, no amici curiae briefs were filed on behalf of the Iowa State Association of Counties, the Iowa League of Cities, the Iowa Association of School Boards, or the executive branch of state government to address the practical problems that may result from the majority’s new interpretation. Today’s decision can be and should be limited to its facts—a fait accompli arranged behind closed doors. My concern, however, is that the decision will have a chilling effect on well-intentioned public officials who consider themselves duty-bound to get up to speed on pending matters before public meetings. Let us consider the dilemma now faced by public officials who want to do their homework by sitting down with an administrator privately, rather than prolonging a public meeting. May they continue to confer privately with staff or in small groups? Or, if they do, could someone sue them for violating chapter 21, putting their personal assets at risk for a judgment for attorney fees?

Iowa's leading group representing county governments answered my questions as follows:

The Iowa State Association of Counties (ISAC) provides training for new county supervisors at our New County Officers' School, held bi-annually in January after elections. This conference provides a session on open meeting and public record laws. In addition, there is information in our New County Officer manual on open meeting and public record laws. We also hold webinars throughout the year on various "hot topics" and have had several on various open meeting and public records topics.

We echo the concerns in Justice Waterman’s dissent that this new vague rule will create confusion and make it more difficult for local governments to conduct business in an efficient manner. The opinion appears to be very narrow based on this particular set of facts, especially given that the Court chose to distinguish it from the Telegraph case and not overrule any part of that prior ruling. If the Legislature wished to include in the definition of “meeting” the idea of the use of agents for attendance, that would certainly be within their purview, but the Legislature has twice in recent memory declined to do so. That makes this ruling of the Court concerning, but counties will continue to do their best to comply with all of their statutory duties, including effectively conducting business in an open and transparent manner for the public. We are still digesting the ruling and will consider over the summer whether to ask the Iowa Legislature to clarify the law.

My father used to say, "Tough cases make bad law." But I am firmly with the Iowa Supreme Court majority here. Allowing the Warren County scheme would be tantamount to shredding Iowa's open meetings requirements for governing bodies.

The Telegraph case refers to a 1980 precedent, which held that Iowa law allows a series of private, in-person gatherings of less than a majority of a board’s members. Wiggins discussed on pages 18 and 19 why he did not believe that ruling applied to the current case. Waterman disagreed, arguing on page 31,

The majority acknowledges “our legislature twice considered, but failed to pass, proposed bills that would have amended section 21.2(2) to address serial submajority gatherings.” Yet, the majority effectively rewrites the statutory definition of “meeting” to prohibit informal practices that the legislature has allowed to continue since our unanimous decision thirty-five years ago in Telegraph Herald, Inc. v City of Dubuque, 297 N.W.2d 529, 533–34 (Iowa 1980) (interpreting the statute to allow private in-person gatherings of less than a majority).

I would defer to the elected branches to redefine the requirements of the open meetings law. That is their policy decision to make. The Iowa legislature has clearly acquiesced in our interpretation of chapter 21 in Telegraph Herald.

Iowa League of Cities Executive Director Alan Kemp provided this comment on the Supreme Court opinions:

We do provide training on the open meetings law to our membership. We would never encourage a practice intended to subvert the intent of the Iowa Open Meetings Law.

Concerning the passage from the dissent. The Iowa League of Cities was not asked to submit an amici curiae brief on this case. I cannot speak for the other associations or executive branch of the state. Justice Waterman is correct in his dissent – prior interpretations provided clear guidance on what was a meeting. This new agency approach is very unclear and places administrative staff in a dilemma when interacting with individual elected officials. We are currently reaching out to our member’s city attorneys for their thoughts and seeking to discuss this case with the Iowa Public Information Board and the Iowa Newspaper Association. We will also meet with the various associations so we can determine what advice to provide in light of this opinion.

The Iowa Association of School Boards had a similar take:

The Iowa Association of School Boards discourages "walking quorums," or deliberations among board members that have technically involved less than a quorum, but rotated individuals so as to violate the intent of Iowa's sunshine laws. Our training teaches school boards to follow not just the letter of the open meetings law, but to understand that transparency is an important ethic of good governance.

The new Supreme Court ruling needs a full analysis, and we have not yet had time to do so. Our concern, however, is that it will prevent even one board member from talking to an administrator or to another board member. Public officials need the ability to ask questions, gather factual information and interact with constituents and employees in ways that do NOT create a "walking quorum" without the risk of a lawsuit.

Bleeding Heartland user iowavoter echoed that sentiment in his comment on last Friday's ruling (excerpt):

But requiring boards to think out loud in public all the time just paralyzes them. If I were a board member wanting to bring up some new controversial topic, I would be inclined to float the idea with other board members one at a time. Only when I had gained an ally or two would I go to meeting with my idea. But if I were a Warren County supervisor I would have already broken the law.

Bleeding Heartland user compassplant countered,

The decision does not require boards "to think out loud in public all the time." It does not prevent discussion among any number of members of a governing body.

What it DOES prevent is cloaked policy discussions that are intended to persuade AND arrive at a conclusion, without public oversight or input. This distinction is very, very clear in Wiggins’s writing for the majority. In the case of persuasive or decisive actions, "agency" exists on the part of members of the governing body, while it does not exist in mere discussions and exchanges of factual information. Agency also exists when a proxy carries out these functions of persuasion, policy change, and decision, as it clearly did in the involvement of the Warren administrator as go-between.

Since Waterman's dissent alluded to "practical problems" the majority ruling may create for the executive branch of state government, I sought comment from Governor Terry Branstad, who is also an attorney and former state legislator. Instead of a reaction to the Hutchison v Shull ruling and its implications, the governor's spokesperson Ben Hammes sent this reply:

Gov. Branstad and Lt. Gov. Reynolds have always placed a high priority on transparency in the executive branch and they both have made themselves one of the most open and accessible governor and lt. governor’s in the nation. They hold a weekly press conference along with numerous weekly events that are open to the press. Additionally, Gov. Branstad signed legislation in 2012 creating the Iowa Public Information Board and named the former head of the Iowa Newspaper Association his special advisor for government transparency. The Public Information Board is a free resource that both private citizens and government bodies can utilize in resolving disputes.

In high school debate we called that a "non-response." If you don't want to comment on the court decision, just say, "No comment."

UPDATE: Randy Evans, executive director of the Iowa Freedom of Information Council, sent a guest column he submitted to Iowa newspapers, with this additional comment:

When officials read Justice Wiggins' opinion, I think it's clear what is informational and what is a deliberate attempt to circumvent the open meetings law.

The Warren County supervisors' "meeting" at which the downsizing was "approved" lasted 20 minutes. Most counties' supervisors spend more than 20 minutes talking about buying a new copier or a new road grader.

SECOND UPDATE: Iowa Board of Regents President Bruce Rastetter commented during a March 24 taping of Iowa Public Television's "Iowa Press" program,

Rastetter says he’s unsure now whether conversations board members may have individually with the board’s executibve director might violate the guidelines in the Supreme Court’s ruling — if those individual conversations cover the same topic.

“I think it’s going to be a problem and I think our lawyers or the state needs to clarify exactly what it means on how we’re going to operate because we want to do things within the law,” Rastetter says. “But we also want to be able to have normal, practical conversations on how you make improvement.”

Last July, Rastetter arranged but did not attend a secret meeting between four members of the Iowa Board of Regents and Bruce Harreld, the insiders' favorite for the University of Iowa presidency. Rastetter's presence would have put the gathering in violation of the open meetings law, because nine people serve on the board.

An important come-from-behind victory

By Randy Evans

On Friday when most Iowans were celebrating this team’s or that team’s victory in the NCAA basketball tournament, I was celebrating a come-from-behind victory for the people of Iowa.

The victory didn’t come at Wells Fargo Arena in Des Moines. It came at 1111 E. Court Ave., where the Iowa Supreme Court sits.
For too long, the Legislature and courts have chipped away at people’s access to government meetings and records. They have permitted more to be kept from public view. They have not acted when officials have become increasingly adept at disregarding the “sunshine” laws.

But on Friday, Justice David Wiggins, writing for a 4-3 majority of the court, delivered a stinging rebuke to officials who prefer to act by secret deliberation and decision rather than in public.

Wiggins reminded government officials of the simple meaning of Iowa’s open meetings law when it says, “This chapter seeks to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of government decisions, as well as those decisions themselves, are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.”

Wiggins’ reminder has long been needed, as events around Iowa show.

The Supreme Court decision came in a Warren County case, where the three-member Board of Supervisors deliberated one at a time with the county administrator for three months about downsizing county government.

Supervisors agreed to shrink the workforce. They agreed to give those employees severance pay and temporary health insurance. They even notified the 11 affected employees.

And all of this occurred without the topic being discussed --- or voted on --- in a public meeting.

It wasn’t until 24 days after the workers were informed --- and two days after employees sued the board for violating the open meetings law --- that the supervisors held a charade of a public meeting and voted to eliminate the 11 jobs.

There was no discussion among the supervisors. The public was not allowed to speak. And 20 minutes later, the meeting ended.

Justice Wiggins wrote in the decision, “Adopting the interpretation of [the open meetings law] urged by the board and its members would result in absurd consequences undermining the clear purpose of the open meetings law.”

The scheme Warren County supervisors used is far from the only time government officials have resorted to some pretext to shut out the public.

The Des Moines Water Works sued three counties for permitting local drainage districts to channel nitrate-laced runoff from farm fields into the Raccoon River. But for months, Buena Vista, Calhoun and Sac counties have kept their taxpayers in the dark --- over the costs of defending the lawsuit, over joint meetings supervisors held to set up a combined litigation fund and over offers from agriculture organizations to pay the counties’ outside lawyers.

No one expects the counties to share their attorneys’ legal advice for fighting the lawsuit. But county officials should share the “basis and rationale,” as Iowa law calls it, for their decisions about what the lawyers are charging and how the lawyers are being paid.

The Davenport City Council, always shy of a quorum, meets regularly with administrators to talk about issues coming before the council. Those sessions are closed to the public, although the law does not require the closure. By the time the formal meetings are held, policy differences have been ironed out.

Of course, with the debate occurring in private, that doesn’t square with Justice Wiggins’ reminder that the public must be allowed to watch when officials deliberate policy matters.

In Muscatine, the mayor and City Council exchanged numerous emails recently about the mayor’s nominees for city boards. The emails were leaked to the local newspaper and showed much disagreement over her choices. When the council met, however, members postponed action on the appointments --- presumably to work out their disagreements in private.

Debate by email doesn’t meet most people’s definition of an open meeting.

From the Statehouse in Des Moines to the courthouses and city halls across Iowa, government officials should read Justice Wiggins’ much-needed admonition that the public’s business needs to be conducted in front of the public.

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